Citation Nr: 0028401
Decision Date: 10/27/00 Archive Date: 11/01/00
DOCKET NO. 99-13 184 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Entitlement to an effective date earlier than October 8,
1998, for a permanent and total disability rating for pension
purposes.
ATTORNEY FOR THE BOARD
J. W. Loeb, Counsel
INTRODUCTION
The veteran served on active duty from September 1974 to
October 1975. This matter came before the Board of Veterans'
Appeals (Board) on appeal of a March 1999 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Chicago, Illinois.
FINDINGS OF FACT
1. All available evidence necessary for an equitable
disposition of the veteran's claim has been obtained.
2. The veteran became permanently and totally disabled on
January 28, 1985; for more than 30 days thereafter, the
veteran was so incapacitated by physical disability that he
was unable to file a claim for pension benefits; his claim
for pension benefits was received by VA on October 8, 1998.
CONCLUSION OF LAW
The requirements for an effective date of January 28, 1985,
for a permanent and total rating for pension purposes have
been met. 38 U.S.C.A. §§ 5107(a), 5110 (West 1991); 38
C.F.R. § 3.400 (1999).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Board finds that the veteran's claim for an effective
date earlier than October 8, 1998, for a permanent and total
disability rating for pension purposes is well grounded
within the meaning of 38 U.S.C.A. § 5107(a). The Board is
also satisfied that all relevant facts have been properly
developed with respect to the claim and that no further
assistance to the veteran is required to comply with the duty
to assist mandated by statute.
Except as otherwise provided, the effective date of an award
of pension based on an original claim or a claim reopened
after final disallowance will be the later of the date of
receipt of claim or the date entitlement arose. If, within
one year from the date on which the veteran became
permanently and totally disabled, the veteran files a claim
for a retroactive award and establishes that a physical or
mental disability, which was not the result of the veteran's
own willful misconduct, was so incapacitating that it
prevented him or her from filing a disability pension claim
for at least the first 30 days immediately following the date
on which the veteran became permanently and totally disabled,
the disability pension award may be effective from the date
of receipt of claim or the date on which the veteran became
permanently and totally disabled, whichever is to the
advantage of the veteran. While judgment must be applied to
the facts and circumstances of each case, extensive
hospitalization will generally qualify as sufficiently
incapacitating to have prevented the filing of a claim.
38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.
The RO held in its March 1999 rating decision that the
veteran became permanently and totally disabled in 1985. In
his October 1998 claim for pension benefits, the veteran
reported that he had not worked since January 28, 1985, when
he became permanently and totally disabled due to partial
paraplegia and chronic pain incurred in an accident on that
date. The medical evidence of record shows that the veteran
was admitted to a private hospital on January 28, 1985, due
to multiple injuries sustained in an industrial accident on
that date. He underwent extensive surgery on the day of
admission due to L3 paraplegia from a burst fracture of L3
and a ruptured disc at L3-4. On that date, reduction of a
right ankle fracture and casting of the ankle were also
performed. On March 11, 1985, an external fixation device
and the right ankle cast were removed. The veteran was not
discharged from the hospital until March 25, 1985.
The medical evidence pertaining to the foregoing
hospitalization and to later evaluation and treatment of the
veteran satisfactorily establishes that the veteran has been
permanently and totally disabled since January 28, 1985, as
the RO has held. However, in the Board's opinion, the
evidence also clearly establishes that the veteran was so
incapacitated by physical disability as to be unable to file
a claim for pension benefits until more than 30 days after
the date on which he became permanently and totally disabled.
Therefore, the proper effective date for the permanent and
total rating for pension purposes is January 25, 1985.
ORDER
Entitlement to an effective of January 28, 1985, for a
permanent and total disability rating for pension purposes is
granted, subject to the criteria applicable to the payment of
monetary benefits.
Shane A. Durkin
Veterans Law Judge
Board of Veterans' Appeals